Uniformed Services Employment and Reemployment Rights Act (USERRA)

Army Reserve: Active Duty

Benefit Fact Sheet

Summary:

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of individuals who must be voluntarily or involuntarily absent from their civilian employment positions to serve in the U.S. military. USERRA also prohibits employers from discriminating against past and present members of the uniformed services.

Eligibility:

USERRA applies to all Service Members, past and present, with a focus on those that have civilian careers and employment and perform service in the U.S. uniformed services. The law applies to all employers in both the public and private sectors.

Benefit Highlights:

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) helps ensure that those who serve in the uniformed services of the United States retain their civilian employment and benefits and are not discriminated against due to their service. The law also protects disabled Veterans and requires that reasonable efforts are made by employers to accommodate the disability. A 2010 amendment has extended the definition of "benefit" to include wages and salary.

USERRA is administered by the Department of Labor (DOL) through the Veterans' Employment and Training Service (VETS). It was signed into law in October of 1994 and can be found in the U.S. Code, Chapter 43, Part III, Title 38. The DOL has also issued important clarifications on the rights of returning Service Members in 29 CFR Part 1002.210.

Reemployment Rights

Service Members must meet five criteria to be eligible for reemployment under USERRA. The Service Member must:

Be absent from a position of civilian employment by reason of service in the uniformed services;

Give advance notice of service to the employer;

Have cumulative absences for service of five years or less (actual uniformed time) (subject to exceptions) from their civilian position with the same employer;

Return to work or apply for reemployment in a timely manner following the conclusion of service;

Not be separated from service under other than honorable conditions or with a disqualifying discharge.

USERRA protections include some responsibilities on the part of the Soldier as well as the employer. There are specifics in USERRA that apply to Soldiers based on the time periods of service and absence from the civilian position. Soldiers should consult the law for information regarding their individual situations.

Employers are provided three statutory defenses that may be asserted when presented a claim for USERRA benefits. The burden of proof regarding the use of any of these defenses lies with the employer. An employer is not required to reemploy a returning Service Member when:

The employer's circumstances have changed so that reemployment is impossible or unreasonable;

Reemployment would impose an undue hardship on the employer, (such as when a person is not qualified for a position due to a disability or other bona fide reason and the employer has made reasonable efforts to help the person become qualified);

The employment is for a brief and nonrecurring period of time where there should be no reasonable expectation that the employment will be for a significant period or continue indefinitely.

Soldiers have the right to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA requires that reasonable efforts (such as training or retraining) be made to enable returning Service members to refresh or upgrade their skills to help them qualify for reemployment. The law also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Health Insurance Protection

If a Soldier leaves a job to perform military service, the Soldier has the right to elect to remain on the existing employer-based health plan coverage for up to 24 months while in the military. The Soldier may be required to pay the cost of this coverage. After returning to the job and being reemployed, the Soldier has the right to be immediately reinstated in the employer-based health plan. There should be no waiting periods other than those required due to service related illnesses or injuries.

Discrimination Protection

USERRA protects employees from discrimination due to military service. Therefore, an employer may not deny initial employment, reemployment, retention in employment, promotion, or any employment benefits based on an employee's military service. This protection is provided for past and present members of the uniformed services, those who have applied for membership in the uniformed services, and those who are obligated to serve in the uniformed services.

Claims and Enforcement

The U.S. Department of Labor Veterans Employment and Training Service (VETS) is responsible for investigating and resolving complaints of USERRA violations. VETS has developed an Internet-based system to allow USERRA claimants to officially submit claims through an electronic version of Form 1010. To file a complaint, visit http://www.dol.gov/vetsfor this form or contact VETS at 1-866-4-USA-DOL. The Department of Labor also provides a USERRA Advisor to help understand employee eligibility, employer obligations, benefits, and remedies under the Act. The USERRA Advisor is a web-based system that helps users find specific information by answering a series of questions. A newly added test program will begin referring some USERRA claims by federal employees to the Office of Special Counsel (OSC).

In addition, employers are required to provide employees a notice of USERRA rights, benefits, and obligations. Typically this is done by posting these rights in a public place within the workplace.

Soldiers may also contact the Employer Support of the Guard and Reserve (ESGR), a Department of Defense office created to assist in the resolution of conflicts arising from an employee's military commitment. If ESGR cannot resolve a complaint, they will assist in handing it off to DOL VETS. ESGR can be contacted at 1-800-336-4590